Bargaining Required Over Gang Affiliation Rule

Local 700 of the International Brotherhood of Teamsters represents corrections officers, deputy sheriffs, and fugitive investigators in the Sheriff’s Office of Cook County, Illinois. In 2013, the County issued what became known as the Gang Order. The Gang Order began with the statement that “criminal organizations and street gangs pose a substantial threat to the public and directly impede the efforts of the County to provide for public safety,” and provided that “any violation of this order may result in denial of access to the CCSO; disciplinary action up to and including termination; and/or criminal charges where applicable.”

The Gang Order prohibited membership in “Known Criminal Organizations” or association with individuals whom the “employee knows or should know that the person with whom the employee associates is or was a member of a Known Criminal Organization.” The Gang Order defined a “Known Criminal Organization” as a group of persons “who form an allegiance for a common purpose, who engage in criminal activity, and who conform to one or more of the following traits: (1) Share a common group name; (2) Share common symbols, tattoos, or graffiti; (3) Share a common style of dress; (4) Frequently congregate upon, or lay claim to, a geographic location; or (5) Associate together on a regular or continuous basis.”

The Illinois Court of Appeals ruled that the County was required to bargain with Local 700 before adopting the Gang Order. In rejecting the County’s contention that the Gang Order was not a change in past practices, the Court found that “the Sheriff overlooks key differences between previous orders and the Gang Order. The Gang Order states that an employee may not associate with anyone who the employee knew or should have known is or was a member of a Known Criminal Organization. Even if the ‘should have known’ language was in a previous order, the Gang Order re-defined the category of people with whom an employee may not associate.

“While the previous orders prohibited associating with people who had criminal records, were under criminal investigation or indictment, or had a particular reputation, the Gang Order prohibits associating with people who are members of a group with certain traits – namely, the group forms an allegiance for a common purpose, engages in criminal activity, and does one or more of the following: shares a common group name, shares common symbols, tattoos, or graffiti, shares a common style of dress, frequently congregates upon, or lays claim to, a geographic location, and associates together on a regular or continuous basis.

“Moreover, the Gang Order has a broader sweep. Now, to be someone with whom the employee may not associate, a person need not have personally engaged in criminal activity or have a reputation for doing so, but need only to have been part of a group that does. Further, the Gang Order states that ‘any violation of this order may result in denial of access to the CCSO; disciplinary action up to and including termination; and/or criminal charges where applicable.’ Because employees are subject to potential discipline for associating with a new category of people, the Gang Order concerns the terms and conditions of employment and must be bargained.

“Also, under the Gang Order, employees must disclose any and all memberships and associations and states that failure to disclose a relevant membership or association is a violation of County policy. As with the ‘should have known’ rule, the disclosure form requirement is a change that subjects employees to potential discipline, and therefore involves a change to the terms and conditions of employment.

“Though we do not doubt the testimony that gang affiliation among employees is a problem, the record does not indicate that this problem was so urgent that bargaining was not a possibility. Local 700 indeed presented the benefits of bargaining, as well as highlighted areas of concern that bargaining could address. The testimony indicates that bargaining could clarify the requirements of the disclosure form and what employees are actually tasked with, which would tailor the Gang Order to better meet the County’s needs. Additionally, Union members have a significant interest avoiding the prohibited associations and completing the disclosure form correctly, as they could lose their jobs otherwise.”

International Brotherhood of Teamsters, Local 700, 2017 IL App (1st) 152993 (Ill. App. 2017).